Jacobsen v. The Honorable Thomas Lindberg

• Decision Date: 24 August 2010
• Docket Number: No. 1 CA-SA 10-0098.,1 CA-SA 10-0098.
• Citation: 225 Ariz. 318,238 P.3d 129
• Parties: Ryan JACOBSEN, Petitioner, v. The Honorable Thomas LINDBERG, Judge of the Superior Court of the State of Arizona, in and for the County of Yavapai, Respondent Judge. State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

225 Ariz. 318

238 P.3d 129

Ryan JACOBSEN, Petitioner, v. The Honorable Thomas LINDBERG, Judge of the Superior Court of the State of Arizona, in and for the County of Yavapai, Respondent Judge State of Arizona, Real Party in Interest.

No. 1 CA-SA 10-0098.

Court of Appeals of Arizona,Division 1, Department E.

Aug. 24, 2010.

Yavapai County Public Defender by Robert K. Gundacker, Deputy Public Defender, Prescott, Attorneys for Petitioner.

Sheila Sullivan Polk, Yavapai County Attorney by Bill R. Hughes, Deputy County Attorney, Prescott, Attorneys for Real Party in Interest.

OPINION

IRVINE, Judge.

¶ 1 Ryan Jacobsen seeks relief from the trial court's order limiting his invocation of his rights against self-incrimination in a polygraph examination and determining that hisrights are protected by Arizona Revised Statutes (“A.R.S.”) section 13-4066. We reiterate our supreme court's previous holding that a waiver of the privilege against self-incrimination may not be made a condition of probation. We also hold that A.R.S. § 13-4066 does not adequately protect a probationer's rights against self-incrimination.

¶ 2 Jacobsen was indicted on several counts of Luring a Minor for Sexual Exploitation. He eventually pled guilty in a plea agreement that included sex offender conditions. Two of those terms are relevant here:

6. Actively participate in sex offender treatment and remain in such treatment at the direction of the probation officer.

7. Submit to any program of psychological or physiological assessment at the direction of the probation officer, including but not limited to Abel/penile plethysmograph testing and/or the polygraph, to assist in treatment, planning and case monitoring.

Pursuant to these provisions, Jacobsen's probation officer directed him to enroll in a sex offender treatment program that included periodic polygraph examinations.

¶ 3 Jacobsen was asked to complete several forms before undergoing a polygraph examination. One was a consent to participate which included a waiver of confidentiality that noted his probation officer would be fully informed of his issues and progress. It also noted: “I understand that distressed polygraphs cannot and will not be used in court or for probation revocation or treatment termination.” Jacobsen asked his counselor what the consequence would be if he exercised his right against self-incrimination and refused to answer questions in the polygraph and was told that a refusal to answer any question for any reason would constitute a failure of the polygraph.

¶ 4 Jacobsen was also asked to complete a fifteen page questionnaire before taking the polygraph. The questions covered a wide range of topics. Some related to the offenses to which he had pled guilty, but others addressed other potentially illegal activities such as sex acts with or abuse of minors, use of prostitutes, stealing property, and secretly photographing others. Other questions addressed legal, non-deviant sex acts.

¶ 5 Eventually, Jacobsen filed a Motion to Preclude Polygraph Examination and Pre-Polygraph Questionnaire, arguing that requiring him to answer all the questions violated his rights under the Fifth Amendment to the United States Constitution. The trial court initially responded by issuing an order “granting Defendant immunity according to A.R.S. § 13-4066.” Jacobsen filed an additional pleading questioning the court's authority to give him immunity and arguing that the protections of A.R.S. § 13-4066 were not broad enough to protect his Fifth Amendment rights. After further argument, the trial court ruled that A.R.S. § 13-4066 provides a probationer with adequate Fifth Amendment protection as to information or statements elicited during sex offender treatment. Specifically, the court stated:

The Court finds that the Defendant has not consented, absent the Order of the Court, to answer the questions as a matter of fact in this case, except the statement or evidence may be used pursuant to Rule 404 B and C. In connection with questions that may be asked in the course of probation services, plethysmograph, or polygraph, the Court believes that the Defendant has a right to invoke Fifth Amendment privilege if to answer the question would possibly incriminate him with regard to statements that are made pertaining to activities that have or may have occurred subsequent to being placed on probation and undergoing the treatment that was prescribed by the Plea Agreement and the Court's probation terms mandated by that agreement. The Court believes that a person, without violating terms of the Plea Agreement or the probation terms, can invoke the Fifth Amendment rights with regard to those areas that are not protected, which would be the areas covered by A.R.S. § 13-4066(B). The Court believes that A.R.S. § 13-4066(B) provides protection commensurate with the Defendant's Fifth Amendment rights and that he is required to answer those questions so that treatment can occur and rehabilitation services can be provided and directed at the kind of issuesthat may have occurred in a particular person's history. The Court believes that the Defendant is protected in terms of the subsequent use of the information pertaining to this case or preceding cases, by the protections provided by A.R.S. § 13-4066. The Court believes that the Defendant may, without violating the conditions of his probation, invoke the Fifth Amendment with regard to questions that concern what may have occurred after the point in time where he started undergoing treatment and after the time when he was put on probation.

The trial court granted a stay of the polygraph while Jacobsen sought relief from this court.

¶ 6 The interplay between the right against self-incrimination and the requirement that a probationer undergo a polygraph examination is not an issue of first impression. In State v. Eccles, which also involved a probationer required to take a polygraph, our supreme court stated that “the state cannot make waiver of the privilege against self-incrimination a condition of probation.” 179 Ariz. 226, 227, 877 P.2d 799, 800 (1994) (citing Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)). The court explained:

The state may not force defendant to choose between incriminating himself and losing his probationary status by remaining silent. The fact that defendant has not yet been presented with the dilemma of either incriminating himself or jeopardizing his probation does not affect our decision. The Supreme Court has held that “the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment.”

The condition of probation that requires defendant to waive his Fifth Amendment rights is unconstitutional and must be removed from the terms of his probation. The condition thus sanitized would read: as a “critical part of the Sexual Offender Treatment Program,” defendant must agree to “answer [ ] truthfully, any questions [asked by] the probation officer, counselors, polygraph examiners, or any other agent of the Probation Department's treatment programs.” Like the condition at issue in Murphy, this sanitized condition would merely proscribe false statements and require defendant to respond to questions that could not incriminate him in future criminal proceedings; it would not prohibit him from validly asserting the privilege against self-incrimination and would not penalize him for so doing.

The state correctly concedes that defendant's probation cannot be revoked for a valid assertion of the privilege against self-incrimination. We emphasize the word valid. Defendant must truthfully answer all questions that could not incriminate him in future criminal proceedings. To the extent he has lost the privilege on offenses for which he has been convicted, he must answer, even if his answers may be evidence of probation violations and result in revocation. Furthermore, we do not hold that defendant may not incriminate himself; to avoid doing so, he must assert the privilege at the appropriate time. Without the impermissible condition of probation, defendant is free to claim the privilege and must do so if he desires not to incriminate himself.

We recognize that by asserting the privilege, defendant may be refusing to disclose conduct which constitutes both a probation violation and a new criminal offense. The Supreme Court addressed this concern in a footnote in Murphy and stated that “a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.” Murphy, 465 U.S. at 436 n. 7, 104 S.Ct. at 1147 n. 7. Thus, the state may compel answers to incriminating questions only if it offers the probationer use immunity. See id. at 439, 104 S.Ct. at 1148 (“We have not been advised of any case in which Minnesota has attempted to revoke probation merely because a probationer refused to make nonimmunized disclosures....”).

Eccles, 179 Ariz. at 228-29, 877 P.2d at 801-02 (internal citation and footnote omitted). We conclude that this analysis applies here. The State cannot require Jacobsen to waive his Fifth Amendment rights as a condition of probation and cannot require him to answer questions that could incriminate him in future proceedings. Nor must Jacobsen wait to have his probation revoked before he can seek relief from the trial court's order compelling him to take the exam.

¶ 7 The State argues that Eccles is distinguishable because in that case the written plea agreement did not specifically provide for a waiver of the right against self-incrimination. In Eccles, the trial judge orally told the defendant he must waive his...